H. B. 4589
(By Delegate Campbell)
[Introduced February 22, 2002
; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section four, article nine-a, chapter
six of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, relating to open governmental
proceedings; and providing that a governing body may not go
into executive session to discuss the filling of a vacancy,
when the vacancy is in the position of an elected member of
the governing body.
Be it enacted by the Legislature of West Virginia:
That section four, article nine-a, chapter six of the code of
West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted to read as follows:
ARTICLE 9A. OPEN GOVERNMENTAL PROCEEDINGS.
§6-9A-4. Exceptions.
(a) The governing body of a public agency may hold an
executive session during a regular, special or emergency meeting,
in accordance with the provisions of this section. During the open
portion of the meeting, prior to convening an executive session,
the presiding officer of the governing body shall identify the
authorization under this section for holding the executive session
and present it to the governing body and to the general public, but
no decision may be made in the executive session.
(b) An executive session may be held only upon a majority
affirmative vote of the members present of the governing body of a
public agency. A public agency may hold an executive session and
exclude the public only when a closed session is required for any
of the following actions:
(1) To consider acts of war, threatened attack from a foreign
power, civil insurrection or riot;
(2) To consider:
(A) Matters arising from the appointment, employment,
retirement, promotion, transfer, demotion, disciplining,
resignation, discharge, dismissal or compensation of a public
officer or employee, or prospective public officer or employee
unless the public officer or employee or prospective public officer or employee requests an open meeting. This paragraph does not
permit the governing body of a public agency
to hold an executive
session to discuss the filling of a vacancy,
when the vacancy is in
the position of an elected member of the governing body; or
(B) For the purpose of conducting a hearing on a complaint,
charge or grievance against a public officer or employee, unless
the public officer or employee requests an open meeting. General
personnel policy issues may not be discussed or considered in a
closed meeting. Final action by a public agency having authority
for the appointment, employment, retirement, promotion, transfer,
demotion, disciplining, resignation, discharge, dismissal or
compensation of an individual shall be taken in an open meeting;
(3) To decide upon disciplining, suspension or expulsion of
any student in any public school or public college or university,
unless the student requests an open meeting;
(4) To issue, effect, deny, suspend or revoke a license,
certificate or registration under the laws of this state or any
political subdivision, unless the person seeking the license,
certificate or registration or whose license, certificate or
registration was denied, suspended or revoked requests an open
meeting;
(5) To consider the physical or mental health of any person,
unless the person requests an open meeting;
(6) To discuss any material the disclosure of which would
constitute an unwarranted invasion of an individual's privacy such
as any records, data, reports, recommendations or other personal
material of any educational, training, social service,
rehabilitation, welfare, housing, relocation, insurance and similar
program or institution operated by a public agency pertaining to
any specific individual admitted to or served by the institution or
program, the individual's personal and family circumstances;
(7) To plan or consider an official investigation or matter
relating to crime prevention or law enforcement;
(8) To develop security personnel or devices;
(9) To consider matters involving or affecting the purchase,
sale or lease of property, advance construction planning, the
investment of public funds or other matters involving commercial
competition, which if made public, might adversely affect the
financial or other interest of the state or any political
subdivision: Provided, That information relied on during the
course of deliberations on matters involving commercial competition
are exempt from disclosure under the open meetings requirements of this article only until the commercial competition has been
finalized and completed: Provided, however, That information not
subject to release pursuant to the West Virginia freedom of
information act does not become subject to disclosure as a result
of executive session;
(10) To avoid the premature disclosure of an honorary degree,
scholarship, prize or similar award;
(11) Nothing in this article permits a public agency to close
a meeting that otherwise would be open, merely because an agency
attorney is a participant. If the public agency has approved or
considered a settlement in closed session, and the terms of the
settlement allow disclosure, the terms of that settlement shall be
reported by the public agency and entered into its minutes within
a reasonable time after the settlement is concluded;
(12) To discuss any matter which, by express provision of
federal law or state statute or rule of court is rendered
confidential, or which is not considered a public record within the
meaning of the freedom of information act as set forth in article
one, chapter twenty-nine-b of this code.
NOTE: The purpose of this bill is to
provide that a governing body may not go into executive session to discuss the filling of a
vacancy, when the vacancy is in the position of an elected member
of the governing body.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.